Citation Nr: 0715542
Decision Date: 05/24/07 Archive Date: 06/01/07
DOCKET NO. 05-02 028 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUES
1. Entitlement to service connection for a disability
claimed as muscle pain.
2. Entitlement to service connection for right (major)
shoulder capsulitis with bursitis.
3. Entitlement to service connection for sinusitis.
4. Entitlement to service connection for an acquired
psychiatric disorder, including adjustment disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Tzu Wang, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 14, 2003 to
December 6, 2003 with 4 months and 22 days of prior active
service. The veteran also had approximately 22 years of
service with the U.S. Army National Guard.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2004 rating decision
issued by the Department of Veterans Affairs (VA) Regional
Office (RO) in San Juan, the Commonwealth of Puerto Rico.
The veteran's service connection claims for right shoulder
capsulitis with bursitis, sinusitis, and an acquired
psychiatric disorder are addressed in the REMAND portion of
the decision below and are REMANDED to the Agency of Original
Jurisdiction (AOJ) via the Appeals Management Center (AMC),
in Washington, DC. VA will notify the veteran if further
action is required on his part.
FINDING OF FACT
There is no competent medical evidence of a disability
manifested by muscle pain.
CONCLUSION OF LAW
Claimed disability manifested by muscle pain was not incurred
in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103,
5103A, 5107 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.159,
3.303 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103,
5103A (West 2002 & Supp. 2006); 38 C.F.R. § 3.159 (2006).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant of any information and evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; (3) that the claimant is expected to
provide; and (4) must ask the claimant to provide any
evidence in her or his possession that pertains to the claim
in accordance with 38 C.F.R. § 3.159(b)(1). Such notice
should be provided to a claimant before the initial
unfavorable agency of original jurisdiction (AOJ) decision on
a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The Board finds that any defect with respect to VA's notice
requirement in this case was harmless error for the reasons
specified below regarding the issue addressed in this
decision. See VAOPGCPREC 7-2004. A VA notice and duty to
assist letter dated in June 2004 satisfied VA's duty to
notify under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159, as
it informed the appellant of what evidence was needed to
establish service connection, of what VA would do or had
done, and what evidence he should provide, asked the veteran
to send in information describing additional evidence or the
evidence itself, and informed the appellant that it was his
responsibility to help VA obtain evidence maintained by state
or local governmental authorities and medical, employment or
other non-government records necessary to support his claim.
During the pendency of this appeal, the United States Court
of Appeals for Veterans Claims (Court) issued a decision in
the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006),
which held that the notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service-connection claim, including the degree of
disability and the effective date of an award. In the
present appeal, the appellant was not provided with notice of
the type of evidence necessary to establish an initial
disability rating or an effective date, if service connection
was granted on appeal. Since service connection is being
denied, no disability rating or effective date will be
assigned, so the Board finds that there can be no possibility
of any prejudice to the claimant under the holding in
Dingess, supra. The appellant has not alleged any prejudice
with respect to the timing of the notification, nor has any
been shown.
The Board finds that the evidence of record - National Guard
medical records, VA examination reports, and lay statements -
- is adequate for determining whether the criteria for
service connection for the veteran's claim have been met.
The Board finds that VA has obtained, or made reasonable
efforts to obtain, all evidence which might be relevant to
the issues on appeal and that VA has satisfied, to the extent
possible, the duty to assist. It follows that the appellant
has been afforded a meaningful opportunity to participate
effectively in the processing of his claim for service
connection for a disability manifested by muscle pain. For
these reasons, it is not prejudicial to the appellant for the
Board to proceed to finally decide this appeal. See Conway
v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); Sutton v. Brown,
9 Vet. App. 553 (1996); Bernard v. Brown, 4 Vet. App. 384
(1993).
Analysis
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by active
military service. See 38 U.S.C.A. §§ 1110 (West 2002);
38 C.F.R. §§ 3.1(k), 3.303(a) (2006). In order to prevail in
a claim for service connection there must be medical evidence
of a current disability as established by a medical
diagnosis; of incurrence or aggravation of a disease or
injury in service, established by lay or medical evidence;
and of a nexus between the in-service injury or disease and
the current disability established by medical evidence.
Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000).
Where a veteran who served for ninety days or more during a
period of war develops certain chronic diseases to a degree
of 10 percent or more within one year from separation from
service, such diseases may be presumed to have been incurred
in service even though there is no evidence of such disease
during the period of service. This presumption is rebuttable
by affirmative evidence to the contrary. See 38 U.S.C.A.
§§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307,
3.309 (2006). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d)
(2006). Further, if a condition noted during service is not
shown to be chronic, then generally, a showing of continuity
of symptoms after service is required for service connection.
See 38 C.F.R. § 3.303(b) (2006).
The veteran contends that his muscle pains were incurred
during his tour of active military service in August 2003.
In September 2004, the veteran underwent VA general medical
and joints examinations, where he reported cervical pain and
cramps in the right leg. The examiner observed that the
veteran walked unaided without crutches, brace, cane, or
corrective shoes for ambulation. Upon examination, the
veteran's neck exhibited no evidence of pathology for the
claimed cervical pain. Further, he had a normal gait cycle
with no leg discrepancy. Given the above findings, the
examiner did not provide a diagnosis of chronic disorder for
the veteran's symptoms. The Board notes that pain alone,
without a diagnosed or identifiable underlying malady or
condition, does not in and of itself constitutes a disability
for which service connection may be granted. Sanchez-Benitez
v. West, 13 Vet. App. 282, 285 (1999), appeal dismissed in
part, and vacated and remanded in part sub nom. Sanchez-
Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Based
on the above evidence, the Board finds that in the absence of
competent medical evidence of a diagnosed muscular disorder
the veteran's service connection claim for muscular pain must
be denied.
Finally, the appellant and his representative may believe
that there was a causal relationship between the veteran's
service and the claimed disorder. However, the Board notes
that there is no indication that they possess the requisite
knowledge, skill, experience, training, or education to
qualify as a medical expert for their statements to be
considered competent evidence. Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). Lay persons are not considered competent to
offer medical opinions regarding causation or diagnosis.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993).
The preponderance of the evidence is against the award of
service connection for the veteran's claimed disorder; it
follows that, the benefit of the doubt doctrine is not
applicable in the instant appeal. See 38 U.S.C.A. § 5107(b)
(West 2002); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir.
2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991).
ORDER
Service connection for a disability claimed as muscle pain is
denied.
REMAND
This case must be remanded to comply with VA's duty to notify
and assist claimants in substantiating a claim for VA
benefits in reference to the remaining issues on appeal.
38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006);
38 C.F.R. § 3.159 (2006). In the present appeal, the veteran
was not provided with notice of the type of evidence
necessary to establish an initial disability rating or an
effective date, if service connection is granted for his
claims for right shoulder capsulitis with bursitis,
sinusitis, and adjustment disorder. See Dingess, supra.
In support of his service connection claims, the veteran
underwent VA sinus, mental, joints, and general medical
examinations in July and September 2004.
The examinations reveal that the veteran is currently
diagnosed with "right shoulder adhesive capsulitis with
bursitis," allergic rhinitis, maxillary sinusitis, and
"adjustment reaction with mixed emotional features".
In July 2004, the veteran underwent VA mental and sinus
examinations. He reported having been treated for depression
at the VA Medical Center (VAMC) in San Juan, Puerto Rico.
Further, he claimed to have experienced recurrent nasal
stuffiness and watery nasal discharge since his active duty
service in Kuwait. .At the September 2004 VA joints
examination; the veteran reported having injured his right
shoulder while playing basketball in August 2003. The
veteran went to sick call and was treated for his right
shoulder injury. The examiner also noted that the veteran
had X-rays taken of his right shoulder at the San Juan VAMC
in December 2003.
The Board observes that, in June 2004, the AOJ requested and
received the veteran's National Guard medical records.
However, it appears that the AOJ did not request for the
veteran's U.S. Army service medical records. Since the
veteran's disorders were alleged to have been incurred during
active duty, on remand, the AOJ should attempt to obtain the
veteran's U.S. Army medical records, in particular
documentation of the alleged basketball injury to his right
shoulder in August 2003. Moreover, the AOJ should attempt to
obtain any treatment records of the veteran's right shoulder,
mental, and sinusitis disorders from the San Juan VAMC.
After receipt of records, the veteran should be scheduled for
VA examinations, by the appropriate VA specialists, to
ascertain the nature, extent, and etiology of his right
shoulder capsulitis with bursitis, sinusitis, and adjustment
disorder. The examiners should be asked to indicate whether
the veteran suffers from right shoulder capsulitis with
bursitis, sinusitis, and adjustment disorder and, if so,
whether the disabilities were incurred during active service.
Accordingly, the case is REMANDED for the following action:
1. The AOJ must review the entire file
and ensure for the remaining issues on
appeal that all notification and
development necessary to comply with 38
U.S.C.A. §§ 5103(a) and 5103A (West 2002
& Supp. 2006) and 38 C.F.R. § 3.159
(2006), as well as VAOPGCPREC 7-2004, is
fully satisfied. In particular, the AOJ
must send the veteran a corrective
notice, that includes an explanation as
to the information or evidence needed to
establish a disability rating and an
effective date, if service connection is
granted, as outlined by the Court in
Dingess, supra. The claims file must
include documentation that there has been
compliance with the VA's duties to notify
and assist a claimant.
2. The AOJ should request from the
National Personnel Records Center (NPRC),
Department of the U.S. Army, and any unit
with which the veteran was affiliated,
for the veteran's complete service
medical records for his active duty
service from February 14, 2003 to
December 6, 2003, including clinical
records and hospital medical records.
3. Further, the AOJ should ask the
veteran to identify all health care
providers to include military facilities
that have treated him for right shoulder
capsulitis with bursitis, sinusitis, and
adjustment disorder since his discharge
from active service in December 2003.
The AOJ should attempt to obtain records
from each health care provider he
identifies that might have available
records, if not already in the claims
file. In particular, the AOJ should
obtain records from the VAMC in San Juan,
Puerto Rico. If records are unavailable,
please have the health care provider so
indicate.
4. After receipt of records, the veteran
should be scheduled for VA examinations,
by appropriate VA specialists, to
ascertain the nature, extent, and
etiology of his right shoulder capsulitis
with bursitis, sinusitis, and adjustment
disorder. The claims file must be made
available to, and be reviewed by, the
examiners in connection with the
examinations, and the report should so
indicate. The examiners should perform
any tests or studies deemed necessary for
an accurate assessment. The examination
reports should include a detailed account
of all pathology found to be present.
After asking the veteran about the
history of his claimed disorders and
reviewing the claims file, the examiners
should offer an opinion as to whether it
is at least as likely as not (50 percent
likelihood or greater) that the veteran's
right shoulder capsulitis with bursitis,
sinusitis, and adjustment disorder were
incurred in or was caused by military
service, in particular whether his right
shoulder disorder is related to a
basketball injury in August 2003.
The examiners should clearly outline the
rationale and discuss the medical
principles involved for any opinions
expressed. If the requested medical
opinions cannot be given, the examiners
should state the reasons why.
5. After completion of the above, the
AOJ should readjudicate the appellant's
claims for service connection for right
shoulder capsulitis with bursitis,
sinusitis, and adjustment disorder. If
any determination remains unfavorable to
the appellant, he and his representative
should be provided with a supplemental
statement of the case and be afforded an
opportunity to respond before the case is
returned to the Board for further review.
Thereafter, the case should be returned to the Board, if in
order. The purposes of this remand are to comply with due
process of law and to further develop the veteran's claims.
No action by the veteran is required until he receives
further notice; however, the veteran is advised that failure
to cooperate by reporting for examination may result in the
denial of his claims. 38 C.F.R. § 3.655 (2006). The Board
intimates no opinion as to the ultimate outcome of this case.
The appellant and his representative have the right to submit
additional evidence and argument on the matter or matters the
Board has remanded. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2006).
______________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs